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Judgment
N. Paul Vasanthakumar, J.—Mr. A. Arumugam, learned Additional Government Pleader takes notice for the respondents 19.7.2006. After
obtaining instructions, with the consent of both sides the writ petition itself was taken up for disposal on 28.7.2006.
The prayer in the writ petition is to quash the order of the fourth respondent dated 14.4.2006 and consequential direction to the respondents 1
to 4 to pay subsistence allowance for the period from 2.12.82 to 6.11.91, full salary for the period from 7.11.91 to 30.11.95 and to treat the
period from 2.12.82 to 30.11.95 as duty period for the purpose of pay fixation and consequential revision of family pension as directed by the
Tribunal in O.A. No. 6304 of 2002 dated 21.3.2003 and pay all the arrears with interest at 12% per annum.
The brief facts necessary for disposal of this writ petition are as follows;-
a) The petitioner''s husband late P. Kandaswamy entered into service as Sub Inspector of Police in the year 1964 and was promoted as Inspector
of Police in the year 1976.
b) By proceedings dated 02.12.82, the third respondent imposed the penalty of Compulsory Retirement on flimsy charges on the petitioner''s
husband and the same was challenged by the petitioner''s husband in W.P. No. 12167 of 1983 which was transferred to the Tamil Nadu
Administrative Tribunal (hereinafter referred as the Tribunal) and renumbered as T.A.966 of 1989. By an order dated 07.11.91, the Tribunal set
aside the penalty of Compulsory Retirement and directed reinstatement of the petitioner''s husband. The Tribunal finds that the punishment imposed
on the petitioner''s husband is too harsh and modified the said punishment into one of withholding the increment for 2 years without cumulative
effect and directed to reinstate the petitioner''s husband within a period of four months.
c) The said order was challenged by the respondents before the Honourable Supreme Court and the same was dismissed at the admission stage
itself.
d) On 24.11.95, the Director General of Police viz., the first respondent ordered reinstatement and on 23.11.96, the petitioner''s husband died
while he was in service.
e) The third respondent issued an order on 04.07.96 treating the period from 02.12.82 to 24.11.95 as leave on loss of pay. The said order was
challenged by the petitioner in O.A. No. 6304 of 2002 and the same was ordered on 21.03.2003. Paragraph 5 and 6 of the order reads as
follows;
Treating the period between 1991 and 1995 as leave on loss of pay is atrocious. Order of reinstatement has been made by this Tribunal on
7.11.1991. The order must have been implicity obeyed by the respondents and they have been allowed in implementing the order and finally
Kandasamy was reinstated only on 30.11.1995 cannot be treated as leave and this period ought to have been treated as duty period. Kandasamy
is entitled to full wages for the period between 1991 and 1995. Since Kandasamy is dead, the amount due as arrears shall be paid to the applicant
who is the lawfully married wife of the deceased Government Servant. The period of unemployment between 1982 and 1991, has to be
regularised with reference to F.R.54 and F.R.54 A r/w.54(g) Kandasamy definitely is entitled to pay atleast not less than subsistence allowance
from 2.12.1982 to 7.11.1991. So, this amount also has to be calculated and paid to the applicant. This period also has to be treated as service
period for the purpose of revision of pay and ultimately for fixation of family pension to which the applicant is entitled.
Therefore, the respondents are directed to pay all the arrears due to the applicant within a period of eight weeks from this date. The application
is allowed and ordered in these terms.
f) The said order of the Tribunal was not implemented within the time stipulated and the said order was also not challenged by the respondents
before this Court by filing writ petition. The petitioner, who is a widow, made series of representation requesting the implementation of the order of
the Tribunal at the earliest.
g) By proceedings dated 31.07.04 the third respondent issued order for implementing the direction of the Tribunal in its entirety. The operative
portion of the order is paragraphs 5 to 8 which are extracted hereunder;-
In this regard, the opinion of the Senior Standing Counsel, Tamil Nadu Administrative Tribunal, Chennai was sought for, for which he has stated
that the above order seemed to be just and fair and hence the case need not be taken on appeal. Based on this opinion, the Director General of
Police vide memorandum in C. No. P.R.I(2) /272490/2002, dated 13.07.2004 has directed the Commissioner of Police, Chennai to implement
the orders of the Tamil Nadu Administrative Tribunal in O.A. No. 6304 of 2002 filed by Tmt. Kasthuri, W/o.(Late)Tr. Kandaswamy, Inspector of
Police.
Under these circumstances, it is ordered to regularise the period of unemployment(i.e.) from 02.12.1982 to 07.11.1991 with reference to
FR.54 and FR.54(A), r/w 54(7). He should be paid atleast not less than subsistence allowance for the above period.
Further the period from 0711.1991 to 3011.95 is treated as duty for which (Late) Tr. kandaswamy is entitled to full wages since the Tamil
Nadu Administrative Tribunal order dated 07.11.1991 has been delayed and finally the Inspector of Police, T. Kandaswamy re-instated only on
30.11.1995. According to this direction, full wages will be claimed and paid to the legal heir(ie) Tmt. Kasthuri W/o.(Late) Inspector of Police,
Kandaswamy by fixing his pay according to Rules.
The concerned Superintendent will take necessary further action in this regard immediately and report of compliance within 15 days positively.
In the said order, the Commissioner of Police directed the concerned Superintendent of Police to take necessary further action immediately and
report the compliance within 15 days positively.
The learned Counsel for the petitioner submits that inspite of expiry of more than about 11/2 years the fourth respondent has not taken any
action. Therefore, the petitioner submitted a representation again to the Commissioner of Police on 20.10.2005 and prayed for implementation of
the order of the Tribunal dated 21.03.2003 at the earliest. Thereafter, the impugned order was passed by the fourth respondent. Paragraphs 2 and
3 of the impugned order are extracted hereunder;-
2) Thereafter, Tmt. K. Kasthuri W/o. Kandasamy (Late) Inspector of Police, has filed an O.A. No. 6304 of 2002 and get the order on
21.03.2003. As per Tamil Nadu Administrative Tribunal order the period of unemployment has calculated as follow in this office reference second
cited. (copy enclosed)
3.12.82 to 24.01.83 - 53 days E.L.
25.01.83 to 24.04.83 - 90 days U.E.L.(P.A.)
25.04.83 to 06.11.91 - 3118 days L.W.P.
7.11.91 to 30.11.95 - treated as duty.
Vacancy Reserve (Compulsory Wait)
1.12.95 to 13.12.95 - Regulated as duty.
3) The period of out of employment from 7.11.91 to 30.11.95 and Compulsory wait period 1.1.95 to 13.12.95 have been regulated as duty as
per Tamil Nadu Administrative Tribunal order. Hence, the pay & allowances of the above period will be drawn and paid separately to the nominee
of the deceased Inspector (i.e. Tmt. K. Kasthuri).
The grievance of the petitioner is that the Tribunal order having become final and the Commissioner of Police having directed the fourth
respondent to implement the said order in toto, the fourth respondent has no jurisdiction to pass the impugned order and virtually the impugned
order is contrary to the directions given by the Tribunal as well as the implementation order issued by the Commissioner of Police.
The Tribunal order really states as to how the period should be treated insofar as the petitioner''s husband is concerned. The said order has
become final and the Commissioner of Police rightly, after receiving the opinion of the Senior Standing Counsel, passed implementation order as
early as on 31.07.2004 with a specific direction to the fourth respondent to comply with the said order positively within 15 days and directed to
send a report. The fourth respondent has not only chosen not to comply with the order of the Tribunal but also refused to obey the order of the
Commissioner of Police and thereby the petitioner, who is widow, is forced to file this writ petition.
According to the learned Counsel for the petitioner, the arrears of salary from the year 1991 to 1994 and subsistence allowance from
2.12.1982 to 6.11.1991 together comes to a huge sum, but the fourth respondent has denied the same and the learned Counsel for the petitioner
submitted that the petitioner is entitled to get interest atleast from the date of the order passed by the Commissioner of Police i.e. 31.07.04.
Taking note of the over all facts and having got the order of Tribunal and order of the Commissioner of Police, the impugned order passed by
the fourth respondent is illegal. The fourth respondent has no jurisdiction to interpret the Tamilnadu Administrative Tribunal order and also the
order passed by the Commissioner of Police, who in turn passed the order after getting the opinion of the Senior Standing Counsel of the Tamil
Nadu Administrative Tribunal. The 4th respondent has not only violated the order of the Tamilnadu Administrative Tribunal, but also the order of
the third respondent and the same has to be treated as failure on his part to perform the task assigned to him within the time stipulated for the
purpose and with the quality of the performance expected of him and the same shall be deemed to be lacking in devotion to duty. I am only
pointing out this while allowing the writ petition and it is for the appropriate authority to take action or not against the 4th respondent, who has
chosen to pass the order impugned in this writ petition. Certainly the impugned order is not in consonance with the order of the Tribunal and that of
the third respondent. The petitioner, who is a widow was denied of her just claim stating unjust reasons by the 4th respondent.
Therefore, the impugned order is set aside and the fourth respondent is directed to comply with the direction issued by the Tribunal as well as
the Commissioner of Police dated 21.03.2003 and 31.07.2004 respectively. The amount payable to the petitioner shall be paid with interest at the
rate of 9% per annum for the arrears from 31.07.2004 on or before 31.08.2006. As the petitioner has been unwillingly compelled to file this writ
petition, the 4th respondent is directed to pay a cost of Rs. 3,000/- to the petitioner.